Ex 4.3
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of this 17th day of April, 2002, by
and between NISSAN MOTOR ACCEPTANCE CORPORATION, a California corporation (the
"Seller"), having its principal executive office at 000 X. 000xx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, and NISSAN AUTO RECEIVABLES CORPORATION II, a
Delaware corporation (the "Purchaser"), having its principal executive office at
000 X. 000xx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000.
WHEREAS, in the regular course of its business, the Seller purchases
certain motor vehicle retail installment sale contracts secured by new, near-new
and used automobiles and light duty trucks from motor vehicle dealers.
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which the Receivables (as hereinafter defined) and certain other
property are to be sold by the Seller to the Purchaser, which Receivables will
be transferred by the Purchaser pursuant to the Sale and Servicing Agreement (as
hereinafter defined), to the NISSAN AUTO RECEIVABLES 2002-B OWNER TRUST (the
"Trust"), which will issue notes backed by such Receivables and the other
property of the Trust (the "Notes") and certificates representing fractional
undivided interests in such Receivables and the other property of the Trust (the
"Certificates").
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration, and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Terms not defined in this Agreement shall have the respective meanings
assigned such terms set forth in the Sale and Servicing Agreement or Trust
Agreement, as the case may be. As used in this Agreement, the following terms
shall, unless the context otherwise requires, have the following meanings (such
meanings to be equally applicable to the singular and plural forms of the terms
defined):
"Agreement" means this Purchase Agreement and all amendments hereof and
supplements hereto.
"Assignment" means the document of assignment attached to this
Agreement as Exhibit A.
"Certificates" shall have the meaning specified in the introductory
paragraphs of this Agreement.
"Closing" shall have the meaning specified in Section 2.2.
"Closing Date" means April 17, 2002.
"Collections" means all amounts collected by the Servicer (from
whatever source) on or with respect to the Receivables.
"Damages" shall have the meaning specified in Section 5.4(a).
"Distribution Date" means, for each Collection Period, the 15th day of
the following month or, if such 15th day is not a Business Day, the next
succeeding Business Day.
"Notes" shall have the meaning specified in the introductory paragraphs
of this Agreement.
"Prospectus" has the meaning assigned to such term in the Underwriting
Agreement.
"Purchaser" means Nissan Auto Receivables Corporation II, a Delaware
corporation, and its successors and assigns.
"Rating Agency" means Standard & Poor's Rating Services, a division of
The XxXxxx-Xxxx Companies, Inc., or Xxxxx'x Investors Service, Inc. or any
successors thereto.
"Receivable" means any retail installment sale contract that appears on
the Schedule of Receivables.
"Receivables Purchase Price" means $1,627,584,635.50.
"Repurchase Event" shall have the meaning specified in Section 6.2.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
by and among Nissan Auto Receivables Corporation II, as seller, Nissan Motor
Acceptance Corporation, as servicer, and the Trust dated as of April 17, 2002,
as the same may be amended, amended and restated, supplemented or modified.
"Schedule of Receivables" means the list of Receivables annexed to the
Assignment as Schedule A thereto.
"Securities" means the Notes and the Certificates.
"Seller" means Nissan Motor Acceptance Corporation, a California
corporation, and its successors and assigns.
"Trust" means the Nissan Auto Receivables 2002-B Owner Trust, a
Delaware business trust.
"Trust Agreement" means the Trust Agreement dated as of October 17,
2001, as amended by the Amended and Restated Trust Agreement by and between
Nissan Auto Receivables Corporation II, as seller, and Wilmington Trust Company,
as owner trustee, dated as of April 17, 2002, as the same may be amended,
amended and restated, supplemented or modified.
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"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
"Underwriting Agreement" means the Underwriting Agreement by and
between X.X. Xxxxxx Securities Inc., as representative of the several
underwriters, and the Purchaser, dated April 9, 2002.
"Yield Supplement Agreement" means the agreement, dated as of the date
of this Agreement, among the Purchaser, the Seller, Xxxxx Fargo Bank Minnesota,
National Association, as Indenture Trustee, and the Trust.
With respect to all terms in this Agreement, the singular includes the
plural and the plural the singular; words importing any gender include the other
genders; references to "writing" include printing, typing, lithography and other
means of reproducing words in a visible form; references to agreements and other
contractual instruments include all subsequent amendments, amendments and
restatements, and supplements thereto or changes therein entered into in
accordance with their respective terms and not prohibited by this Agreement;
references to Persons include their permitted successors and assigns; references
to laws include their amendments and supplements, the rules and regulations
thereunder and any successors thereto; and the term "including" means "including
without limitation."
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1 Purchase and Sale of Receivables.
On the Closing Date, subject to the terms and conditions of this
Agreement, the Seller agrees to sell to the Purchaser, and the Purchaser agrees
to purchase from the Seller, the Receivables and the other property relating
thereto (as defined below).
(a) Transfer of Receivables. On the Closing Date and simultaneously
with the transactions pursuant to the Sale and Servicing Agreement, the Seller
shall sell, transfer, assign and otherwise convey to the Purchaser, without
recourse:
(i) all right, title and interest of the Seller in and to the
Receivables (including all related Receivable Files) and all monies due
thereon or paid thereunder or in respect thereof after the Cutoff Date;
(ii) the right of the Seller in the security interests in the
Financed Vehicles granted by the Obligors pursuant to the Receivables
and any related property;
(iii) the right of the Seller in any proceeds from claims on
any physical damage, credit life, credit disability or other insurance
policies covering Financed Vehicles or Obligors;
(iv) the right of the Seller to receive payments in respect of
any Dealer Recourse with respect to the Receivables;
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(v) the right of the Seller to realize upon any property
(including the right to receive future Net Liquidation Proceeds) that
shall have secured a Receivable;
(vi) the right of the Seller in rebates of premiums and other
amounts relating to insurance policies and other items financed under
the Receivables in effect as of the Cutoff Date; and
(vii) all proceeds of the foregoing;
provided that the Seller shall not be required to deliver to the
Purchaser on the Closing Date monies received in respect of the
Receivables after the Cutoff Date and before the Closing Date but shall
or shall cause the Servicer to deposit such monies into the Collection
Account no later than the first Record Date after the Closing Date.
(b) Receivables Purchase Price. In consideration for the Receivables
and other properties described in Section 2.1(a), the Purchaser shall, on the
Closing Date, pay to the Seller the Receivables Purchase Price. An amount equal
to approximately 91.574% of the Receivables Purchase Price shall be paid to the
Seller in cash by federal wire transfer (same day) funds. The remaining
approximately 8.426% of the Receivables Purchase Price shall be deemed paid by
the Purchaser to the Seller and then immediately returned by the Seller to the
Purchaser as a contribution to capital.
2.2 The Closing. The sale and purchase of the Receivables shall take
place at a closing (the "Closing") at the offices of O'Melveny & Xxxxx LLP, 000
Xxxxx Xxxx Xxxxxx, Xxx Xxxxxxx, XX 00000 on the Closing Date, simultaneously
with the closings under: (a) the Sale and Servicing Agreement pursuant to which
(i) the Purchaser will assign all of its right, title and interests in and to
the Receivables and other property conveyed pursuant to Section 2.1(a) to the
Trust for the benefit of the Securityholders; and (ii) the Purchaser will
deposit the foregoing into the Trust in exchange for the Securities; and (b) the
Underwriting Agreement, pursuant to which the Purchaser will sell to the
underwriters named therein the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, and the Class A-4 Notes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Warranties of the Purchaser. The Purchaser hereby represents and
warrants to the Seller as of the date hereof and as of the Closing Date:
(a) Organization, etc. The Purchaser has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to execute and deliver this
Agreement and to perform the terms and provisions hereof.
(b) Due Authorization and No Violation. This Agreement has been duly
authorized, executed and delivered by the Purchaser, and constitutes a legal,
valid and binding obligation of the Purchaser, enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors'
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rights generally and to general equitable principles. The consummation of the
transactions contemplated by this Agreement and the fulfillment of the terms
hereof do not conflict with, result in a breach of any of the terms or
provisions of, nor constitute (with or without notice or lapse of time) a
default under, or result in the creation or imposition of any Lien upon any of
the property or assets of the Purchaser pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or
similar agreement or instrument under which the Purchaser is a debtor or
guarantor, nor will such action result in any violation of the provisions of the
Certificate of Incorporation or the By-laws of the Purchaser; which breach,
default, conflict, Lien or violation in any case would have a material adverse
effect on the ability of the Purchaser to perform its obligations under this
Agreement.
(c) No Litigation. There are no proceedings or investigations pending
to which the Purchaser is a party or of which any property of the Purchaser is
the subject, and, to the best of the Purchaser's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others; other than such proceedings that would not have a material adverse
effect upon the ability of the Purchaser to perform its obligations under, or
the validity and enforceability of, this Agreement.
3.2 Representations and Warranties of the Seller. (a) The Seller hereby
represents and warrants to the Purchaser as of the date hereof and as of the
Closing Date:
(i) Organization, etc. The Seller has been duly organized and
is validly existing as a corporation in good standing under the laws of
the State of California and is in good standing in each jurisdiction in
the United States of America in which the conduct of its business or
the ownership of its property requires such qualification and where the
failure to so qualify would have a material adverse effect on the
ability of the Seller to perform its obligations under this Agreement.
(ii) Power and Authority. The Seller has the corporate power
and authority to sell and assign the property sold and assigned to the
Purchaser hereunder and has duly authorized such sale and assignment to
the Purchaser by all necessary corporate action. This Agreement has
been duly authorized, executed and delivered by the Seller and
constitutes a legal, valid and binding obligation of the Seller,
enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general equitable
principles.
(iii) No Violation. The consummation of the transaction
contemplated by this Agreement, and the fulfillment of the terms
hereof, do not conflict with, or result in a breach of any of the terms
or provisions of, nor constitute (with or without notice or lapse of
time) a default under, or result in the creation or imposition of any
Lien upon any of the property or assets of the Seller pursuant to the
terms of, any indenture, mortgage, deed of trust, loan agreement,
guarantee, lease financing agreement or similar agreement or instrument
under which the Seller is a debtor or guarantor, nor will such action
result in any violation of the provisions of the Articles of
Incorporation or the By-Laws of the Seller; which breach, default,
conflict, Lien or violation in any case would have a
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material adverse effect on the ability of the Seller to perform its
obligations under this Agreement.
(iv) No Proceedings. There are no proceedings or
investigations pending to which the Seller is a party or of which any
property of the Seller is the subject, and, to the best of the Seller's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others, other than such
proceedings that would not have a material adverse effect upon the
ability of the Seller to perform its obligations under, or the validity
and enforceability of, this Agreement.
(b) The Seller makes the following representations and warranties as to
the Receivables on which the Purchaser relies in accepting the Receivables. Such
representations and warranties speak as of the execution and delivery of this
Agreement, but shall survive the sale, transfer, and assignment of the
Receivables to the Purchaser hereunder and the subsequent assignment and
transfer pursuant to the Sale and Servicing Agreement:
(i) Characteristics of Receivables. Each Receivable (a) has
been originated in the United States of America by a Dealer for the
retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, has been fully and properly executed by the parties
thereto, has been purchased by the Seller from such Dealer under an
existing dealer agreement with the Seller, and has been validly
assigned by such Dealer to the Seller, (b) created a valid, subsisting
and enforceable security interest in favor of the Seller in such
Financed Vehicle, (c) contains customary and enforceable provisions
such that the rights and remedies of the holder thereof are adequate
for realization against the collateral of the benefits of the security,
(d) provides for level monthly payments (provided that the payment in
the first or last month in the life of the Receivable may be minimally
different from the level payment) that fully amortize the Amount
Financed over an original term of no greater than 63 months, and (e)
provides for interest at the related Annual Percentage Rate.
(ii) Schedule of Receivables. The information set forth in
Schedule A to this Agreement was true and correct in all material
respects as of the opening of business on the Cutoff Date; the
Receivables were selected at random from the Seller's retail
installment sale contracts (other than contracts originated in Alabama
or Hawaii) meeting the criteria of the Trust set forth in the Sale and
Servicing Agreement; and no selection procedures believed to be adverse
to the Securityholders were utilized in selecting the Receivables.
(iii) Compliance with Law. Each Receivable, the origination of
such Receivable, and the sale of the Financed Vehicle complied at the
time it was originated or made and at the execution of this Agreement
complies in all material respects with all requirements of applicable
federal, state and local laws, and regulations thereunder, including
usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, the Soldiers and Sailors Civil Relief Act
of 1940, the Federal Reserve Board's Regulations B and Z, and state
adaptations of the National Consumer Credit Protection Act and of the
Uniform
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Consumer Credit Code, state "Lemon Laws" designed to prevent fraud in
the sale of automobiles and other consumer credit laws and equal credit
opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable represents the
genuine, legal, valid and binding payment obligation in writing of the
Obligor, enforceable by the holder thereof in accordance with its
terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and by general equitable principles.
(v) Security Interest in Financed Vehicle. (a) Immediately
prior to the sale, assignment and transfer thereof to the Purchaser,
each Receivable was secured by a validly perfected first priority
security interest in the Financed Vehicle in favor of the Seller as
secured party or all necessary or all appropriate actions shall have
been commenced that would result in the valid perfection of a first
priority security interest in the Financed Vehicle in favor of the
Seller as secured party, and (b) as of the Cutoff Date, according to
the records of the Seller, no Financed Vehicle has been repossessed and
the possession thereof not reinstated.
(vi) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released
from the lien granted by the related Receivable in whole or in part.
(vii) No Waiver. No provision of a Receivable has been waived
in such a manner that is prohibited by the provisions of the Sale and
Servicing Agreement or that would cause such Receivable to fail to meet
all of the other requirements and warranties made by the Seller herein
with respect thereto.
(viii) No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense, including the defense of
usury, and the operation of any of the terms of any Receivable, or the
exercise of any right thereunder, will not render such Receivable
unenforceable in whole or in part or subject such Receivable to any
right of rescission, setoff, counterclaim or defense, including the
defense of usury, and no such right of rescission, setoff, counterclaim
or defense has been asserted with respect thereto.
(ix) No Liens. To the Seller's knowledge, no liens have been
filed for work, labor or materials relating to a Financed Vehicle that
shall be liens prior to, or equal or coordinate with, the security
interest in the Financed Vehicle granted by the Receivable.
(x) No Default. Except for payment defaults continuing for a
period of not more than 29 days as of the Cutoff Date, no default,
breach, violation or event permitting acceleration under the terms of
any Receivable has occurred; and no continuing condition that with
notice or the lapse of time would constitute a default, breach,
violation or event permitting acceleration under the terms of any
Receivable has arisen (other than deferrals and waivers of late payment
charges or fees permitted under the Sale and Servicing Agreement).
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(xi) Insurance. The Seller, in accordance with its customary
procedures, has determined at the time of origination of each
Receivable that the related Obligor has agreed to obtain physical
damage insurance covering the Financed Vehicle and the Obligor is
required under the terms of related Receivable to maintain such
insurance.
(xii) Title. It is the intention of the Seller that the
transfer and assignment herein contemplated constitute a sale of the
Receivables from the Seller to the Purchaser and that the beneficial
interest in and title to the Receivables not be part of the Seller's
estate in the event of the filing of a bankruptcy petition by or
against the Seller under any bankruptcy law. Immediately prior to the
transfer and assignment herein contemplated, the Seller had good and
marketable title to each Receivable free and clear of all Liens and,
immediately upon the transfer thereof, the Purchaser shall have good
and marketable title to each Receivable, free and clear of all Liens
and rights of others. Each Receivable File contains the original
certificate of title (or a photocopy or image thereof) or evidence that
an application for a certificate of title has been filed. To the extent
that the transfer and assignment contemplated by this Agreement is
deemed to be other than a sale, this Agreement and all filings
described under this Agreement creates a valid and continuing security
interest (as defined in the applicable UCC) in the Receivables in favor
of the Purchaser, which security interest is prior to all other Liens,
and is enforceable as such against creditors of and purchasers from the
Seller.
(xiii) Lawful Assignment. No Receivable has been originated
in, or shall be subject to the laws of, any jurisdiction under which
the sale, transfer and assignment of such Receivable under this
Agreement or pursuant to the Sale and Servicing Agreement are unlawful,
void or voidable.
(xiv) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the
Purchaser a first priority perfected ownership interest in the
Receivables have been made or have been delivered in form suitable for
filing to the Purchaser.
(xv) Chattel Paper. Each Receivable constitutes "tangible
chattel paper", as such term is defined in the UCC.
(xvi) Simple Interest Receivables. All of the Receivables are
Simple Interest Receivables.
(xvii) One Original. There is only one original executed copy
of each Receivable.
(xviii) No Amendments. No Receivable has been amended such
that the amount of the Obligor's Scheduled Payments has been increased.
(xix) APR. The Annual Percentage Rate of each Receivable
equals or exceeds 0.00%.
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(xx) Maturity. As of the Cutoff Date, each Receivable had a
remaining term to maturity of not less than 3 payments and not greater
than 59 payments.
(xxi) Balance. Each Receivable had an original principal
balance of not more than $50,000.00 and, as of the Cutoff Date, had a
principal balance of not less than $2,000.00 and not more than
$49,000.00.
(xxii) Delinquency. No Receivable was more than 29 days past
due as of the Cutoff Date and no Receivable has been extended by more
than two months.
(xxiii) Bankruptcy. No Obligor was the subject of a bankruptcy
proceeding (according to the records of the Seller) as of the Cutoff
Date.
(xxiv) Transfer. Each Receivable prohibits the sale or
transfer of the Financed Vehicle without the consent of the Seller.
(xxv) New, Near-New and Used Vehicles. Each Financed Vehicle
was a new, near-new or used automobile or light-duty truck at the time
the related Obligor executed the retail installment sale contract.
(xxvi) Origination. Each Receivable has an origination date on
or after May 7, 1997.
(xxvii) Forced-Placed Insurance Premiums. No contract relating
to any Receivable has had forced-placed insurance premiums added to the
amount financed.
(xxviii) No Fraud or Misrepresentation. To the knowledge of
the Seller, no Receivable was originated by a Dealer and sold by such
Dealer to the Seller with any conduct constituting fraud or
misrepresentation on the part of such Dealer.
(xxix) No Further Amounts Owed on the Receivables. No further
amounts are owed by the Seller to any Obligor under the Receivables.
(xxx) No Pledge. Other than the security interest granted to
the Purchaser pursuant to this Agreement, the Seller has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed
any of the Receivables (except that certain Receivables were conveyed
to Nissan Warehouse LLC and reconveyed by Nissan Warehouse LLC to the
Seller in connection with the transactions contemplated under the Note
Purchase, Security and Administration Agreement (Retail Installment
Receivables), dated as of August 9, 2001, by and among Nissan Warehouse
LLC, NMAC, Xxxxxx Guaranty Trust Company of New York and certain
purchasers and funding agents specified therein). The Seller has not
authorized the filing of and is not aware of any financing statements
against the Seller that include a description of collateral covering
the Receivables other than any financing statement relating to the
security interest granted to the Purchaser hereunder or a financing
statement as to which the security interest covering the Receivables
has been released. The Seller is not aware of any judgment or tax lien
filings against the Seller.
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(xxxi) Receivable Files. There is no more than one original
copy of each of the documents or instruments constituting the
Receivable Files, and to the extent that an original copy has been
maintained, the Seller has in its possession all such original copies
that constitute or evidence the Receivables. The Receivable Files that
constitute or evidence the Receivables do not have any marks or
notations indicating that they have been pledged, assigned or otherwise
conveyed by the Seller to any Person other than the Purchaser. All
financing statements filed or to be filed against the Seller in favor
of the Purchaser in connection herewith describing the Receivables
contain a statement to the following effect: "A purchase of or security
interest in any collateral described in this financing statement,
except as provided in the Purchase Agreement, will violate the rights
of the Purchaser."
ARTICLE IV
CONDITIONS
4.1 Conditions to Obligation of the Purchaser. The obligation of the
Purchaser to purchase the Receivables and the related property described in
Section 2.1(a) is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct in all material
respects on the Closing Date with the same effect as if then made, and the
Seller shall have performed in all material respects all obligations to be
performed by it hereunder on or prior to the Closing Date.
(b) Computer Files Marked. The Seller shall, at its own expense, on or
prior to the Closing Date, indicate in its computer files that the Receivables
have been sold to the Purchaser pursuant to this Agreement and shall deliver to
the Purchaser the Schedule of Receivables certified by an officer of the Seller
to be true, correct and complete in all material respects.
(c) Documents to be delivered by the Seller at the Closing.
(i) The Assignment. At the Closing, the Seller shall execute
and deliver the Assignment.
(ii) Evidence of UCC Filing. On or prior to the Closing Date,
the Seller shall record and file, or deliver in a form suitable for
filing to the Purchaser, at its own expense, a UCC-1 financing
statement in each jurisdiction in which required by applicable law,
executed by the Seller, as seller or debtor, and naming the Purchaser,
as purchaser or secured party, and the Trust, as assignee of the
Purchaser, naming the Receivables and the other property conveyed
hereunder as collateral, meeting the requirements of the laws of each
such jurisdiction and in such manner as is necessary to perfect the
sale, transfer, assignment and conveyance of such Receivables and other
property conveyed hereunder to the Purchaser.
(iii) Other Documents. At the Closing, the Seller shall
deliver such other documents as the Purchaser may reasonably request.
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(d) Other Transactions. The transactions contemplated by the Sale and
Servicing Agreement shall be consummated on the Closing Date.
4.2 Conditions to Obligation of the Seller. The obligation of the
Seller to sell the Receivables and other property conveyed hereunder to the
Purchaser is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Purchaser hereunder shall be true and correct in all material
respects on the Closing Date with the same effect as if then made, and the
Purchaser shall have performed in all material respects all obligations to be
performed by it hereunder on or prior to the Closing Date.
(b) Receivables Purchase Price. On the Closing Date, the Purchaser
shall deliver to the Seller the Receivables Purchase Price, as provided in
Section 2.1(b).
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows; provided, however,
that, to the extent that any provision of this ARTICLE V conflicts with any
provision of the Sale and Servicing Agreement, the Sale and Servicing Agreement
shall govern:
5.1 Protection of Right, Title and Interest.
(a) The Seller shall execute and file such financing statements and
cause to be executed and filed such continuation statements, all in such manner
and in such places as may be required by law fully to preserve, maintain and
protect the interest of the Purchaser in the Receivables, the other property
conveyed hereunder and the proceeds thereof. The Seller shall deliver (or cause
to be delivered) to the Purchaser file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following such
filing.
(b) The Seller shall notify the Purchaser within 30 days after any
change of its name, identity or corporate structure in any manner that would,
could or might make any financing statement or continuation statement filed by
the Seller in accordance with paragraph (a) above seriously misleading within
the meaning of Sections 9-506 and 9-507 of the UCC, and shall promptly file
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) The Seller shall notify the Purchaser of any relocation of its
principal executive office or state of incorporation within 30 days after such
relocation, if, as a result of such relocation, the applicable provisions of the
UCC would require the filing of any amendment of any previously filed financing
or continuation statement or of any new financing statement and shall promptly
file any such amendment. The Seller shall at all times maintain its principal
executive office within the United States of America.
(d) The Seller shall maintain its computer systems so that, from and
after the time of sale hereunder of the Receivables to the Purchaser, the
Seller's master computer records
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that refer to a Receivable shall indicate clearly the interest of the Purchaser
in such Receivable and that such Receivable is owned by the Purchaser.
(e) If at any time the Seller shall propose to sell, grant a security
interest in, or otherwise transfer any interest in automotive receivables to any
prospective purchaser, lender or other transferee, the Seller shall give to such
prospective purchaser, lender or other transferee computer tapes, records or
print-outs that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been sold and is owned by the
Purchaser.
(f) The Seller shall permit the Purchaser and its agents at any time
during normal business hours upon reasonable advance notice to inspect, audit
and make copies of and abstracts from the Seller's records regarding any
Receivable.
5.2 Other Liens or Interests. Except for the conveyances hereunder and
contemplated pursuant to the Sale and Servicing Agreement, the Seller shall not
sell, pledge, assign or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any Lien on any interest therein, and the Seller shall
defend the right, title and interest of the Purchaser in, to and under such
Receivables against all claims of third parties claiming through or under the
Seller; provided, however, that the Seller's obligations under this Section 5.2
shall terminate upon the termination of the Trust pursuant to the Sale and
Servicing Agreement.
5.3 Costs and Expenses. The Seller agrees to pay all reasonable costs
and disbursements in connection with the perfection, as against all third
parties, of the Purchaser's right, title and interest in and to the Receivables.
5.4 Indemnification.
(a) The Seller shall defend, indemnify and hold harmless the Purchaser
from and against any and all costs, expenses, losses, damages, claims and
liabilities (collectively, "Damages"), arising out of or resulting from the
failure of a Receivable to be originated in compliance with all requirements of
law and for any breach of any of the Seller's representations and warranties
contained herein.
(b) The Seller shall defend, indemnify and hold harmless the Purchaser
from and against any and all Damages arising out of or resulting from the use,
ownership or operation by the Seller or any affiliate thereof of a Financed
Vehicle.
(c) The Seller shall defend, indemnify and hold harmless the Purchaser
from and against any and all taxes that may at any time be asserted against the
Purchaser with respect to the transactions contemplated herein, including,
without limitation, any sales, gross receipts, general corporation, tangible
personal property, privilege, or license taxes (but not including any taxes
asserted with respect to ownership of the Receivables or federal or other taxes
arising out of the transactions contemplated by this Agreement and any related
documents) and costs and expenses in defending against the same.
(d) The Seller shall defend, indemnify and hold harmless the Purchaser
from and against any and all Damages to the extent that such Damage arose out
of, or was imposed
12
upon the Purchaser through, the negligence, willful misfeasance or bad faith of
the Seller in the performance of its duties under this Agreement or by reason of
reckless disregard of the Seller's obligations and duties under this Agreement.
(e) The Seller shall defend, indemnify and hold harmless the Purchaser
from and against all Damages arising out of or incurred in connection with the
acceptance or performance of the Seller's trusts and duties as Servicer under
the Sale and Servicing Agreement, except to the extent that such Damages shall
be due to the willful misfeasance, bad faith or negligence of the Purchaser.
These indemnity obligations shall be in addition to any obligation that
the Seller may otherwise have.
(f) Promptly after receipt by a party indemnified under this Section
5.4 (an "Indemnified Party") of notice of the commencement of any action, such
Indemnified Party will, if a claim in respect thereof is to be made against the
Seller under this Section 5.4, notify the Seller of the commencement thereof. If
any such action is brought against any Indemnified Party under this Section 5.4
and it notifies the Seller of the commencement thereof, the Seller will assume
the defense thereof, with counsel reasonably satisfactory to such Indemnified
Party (who may, unless there is, as evidenced by an opinion of counsel to the
Indemnified Party stating that there is an unwaivable conflict of interest, be
counsel to the Indemnifying Party), and the Seller will not be liable to such
Indemnified Party under this Section 5.4 for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof, other than reasonable costs of investigation. The obligations set forth
in this Section 5.4 shall survive the termination of this Agreement and shall
include reasonable fees and expenses of counsel and expenses of litigation. If
the Seller shall have made any indemnity payments pursuant to this Section 5.4
and the Person to or on behalf of whom such payments are made thereafter
collects any of such amounts from others, such Person shall promptly repay such
amounts to the Seller, without interest (except to the extent received by such
Person).
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Obligations of Seller. The obligations of the Seller under this
Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
6.2 Repurchase Events. The Seller hereby covenants and agrees with the
Purchaser for the benefit of the Purchaser, the Trust, the Indenture Trustee and
the holders of the Securities, that the occurrence of a breach of any of the
Seller's representations and warranties contained in Section 3.2(b) shall
constitute events obligating the Seller to repurchase Receivables hereunder
("Repurchase Events") and pursuant to Section 3.02 of the Sale and Servicing
Agreement, at the amount of the Warranty Purchase Payment from the Purchaser or,
as described in Section 6.4 below, from the Trust. The repurchase obligation of
the Seller shall constitute the sole remedy of the holders of the Securities,
the Trust, the Indenture Trustee and the Purchaser against the Seller with
respect to any Repurchase Event.
13
6.3 Seller's Assignment of Purchased Receivables. With respect to all
Receivables repurchased by the Seller pursuant to this Agreement, the Purchaser
(without the need of any further written assignment) shall assign hereby,
without recourse, representation or warranty (other than that it has good and
marketable title to such Receivables), to the Seller all the Purchaser's right,
title and interest in and to such Receivables, and all security and documents
relating thereto.
6.4 Trust. The Seller acknowledges that the Purchaser will, pursuant to
the Sale and Servicing Agreement, sell the Receivables to the Trust and assign
its rights under this Agreement to the Trust and that the Trust will assign such
rights to the Indenture Trustee for the benefit of the holders of the Notes, and
that the representations and warranties contained in this Agreement and the
rights of the Purchaser under Section 6.2 and the obligations under Section 6.3
are intended to benefit the Trust and the holders of the Securities. The Seller
hereby consents to such sales and assignments.
6.5 Amendment. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Seller and the Purchaser;
provided, however, that any such amendment must be consented to by the Holders
of Notes representing a majority of the Outstanding Amount of the Notes, voting
as a single class, or, in the case of any amendment that does not adversely
affect the Indenture Trustee or the Noteholders (as evidenced by an Officer's
Certificate of the Servicer and an external Opinion of Counsel indicating that
such amendment will not adversely affect the Indenture Trustee or the
Noteholders), the Holders of a majority of the Certificate Balance.
6.6 Accountants' Letters.
(a) The Seller will cause Deloitte & Touche LLP to review the
characteristics of the Receivables described in the Schedule of Receivables and
to compare those characteristics to the information with respect to the
Receivables contained in the Prospectus.
(b) The Seller will cooperate with the Purchaser and Deloitte & Touche
LLP in making available all information and taking all steps reasonably
necessary to permit such accountants to complete the review set forth in Section
6.6(a) and to deliver the letters required of them under the Underwriting
Agreement.
6.7 Waivers. No failure or delay on the part of the Purchaser in
exercising any power, right or remedy under this Agreement or the Assignment
shall operate as a waiver hereof or thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise hereof or thereof or the exercise of any other power, right or remedy.
Notwithstanding anything to the contrary, the Purchaser shall not waive any
breach of representations and warranties set forth in Sections 3.2(b)(v),(xii),
(xiv), (xv), (xxx) or (xxxi).
6.8 Notices. All communications and notices pursuant hereto to either
party shall be in writing (including via telecopy) and addressed or delivered to
it at its address (or in the case of telecopy, at its telecopy number at such
address) shown in the opening portion of this Agreement or at such other address
as may be designated by it by notice to the other party and, if mailed or
delivered, shall be deemed given when mailed or delivered, or transmitted by
telecopy.
14
6.9 Costs and Expenses. The Seller agrees to pay all expenses incident
to the performance of its obligations under this Agreement and the Seller agrees
to pay all reasonable out-of-pocket costs and expenses of the Purchaser,
excluding fees and expenses of counsel, in connection with the perfection as
against third parties of the Purchaser's right, title and interest in and to the
Receivables and the enforcement of any obligation of the Seller hereunder.
6.10 Survival. The respective agreements, representations, warranties
and other statements by the Seller and the Purchaser set forth in or made
pursuant to this Agreement shall remain in full force and effect and will
survive the Closing.
6.11 Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
6.12 Governing Law. This Agreement and the Assignment shall be governed
by and construed in accordance with the internal laws of the State of New York,
without reference to its conflict of law provisions (other than Section 5-1401
of the General Obligations Law of the State of New York), and the obligations,
rights and remedies of the parties under this Agreement shall be determined in
accordance with such laws.
6.13 Counterparts. This Agreement may be executed in multiple
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
6.14 Sale. Each party hereto agrees to treat the conveyance under this
Agreement for all purposes (including, without limitation, tax and financial
accounting purposes) as a sale of the Receivables on all of its relevant books,
records, tax returns, financial statements and other applicable documents.
Although the parties hereto intend that the transfer and assignment contemplated
by this Agreement be a sale, in the event such transfer and assignment is deemed
to be other than a sale, the parties intend that all filings described in this
Agreement shall give the Purchaser a first priority perfected security interest
in, to and under the Receivables and other property conveyed hereunder and all
proceeds of any of the foregoing. This Agreement shall be deemed to be the grant
of a security interest from the Seller to the Purchaser, and the Purchaser shall
have all the rights, powers and privileges of a secured party under the UCC.
15
IN WITNESS WHEREOF, the parties hereto hereby have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the 17th day of April, 2002.
NISSAN MOTOR ACCEPTANCE CORPORATION
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
NISSAN AUTO RECEIVABLES CORPORATION II
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
S-1
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement, dated as
of April 17, 2002 (the "Purchase Agreement"), between the undersigned (the
"Seller") and Nissan Auto Receivables Corporation II (the "Purchaser"), the
undersigned does hereby sell, assign, transfer and otherwise convey unto the
Purchaser, without recourse, the following:
(i) all right, title and interest of the Seller in and to the
Receivables listed on Schedule A hereto (including all related
Receivable Files) and all monies due thereon or paid thereunder or in
respect thereof after the Cutoff Date;
(ii) the right of the Seller in the security interests in the
Financed Vehicles granted by the Obligors pursuant to the Receivables
and any related property;
(iii) the right of the Seller in any proceeds from claims on
any physical damage, credit life, credit disability or other insurance
policies covering Financed Vehicles or Obligors;
(iv) the right of the Seller to receive payments in respect of
any Dealer Recourse with respect to the Receivables;
(v) the right of the Seller to realize upon any property
(including the right to receive future Net Liquidation Proceeds) that
shall have secured a Receivable;
(vi) the right of the Seller in rebates of premiums and other
amounts relating to insurance policies and other items financed under
the Receivables in effect as of the Cutoff Date; and
(vii) all proceeds of the foregoing.
The foregoing sale does not constitute and is not intended to result in
any assumption by the Purchaser of any obligation of the undersigned to the
Obligors, insurers or any other person in connection with the Receivables,
Receivable Files, any insurance policies or any agreement or instrument relating
to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to such terms in the Purchase Agreement.
A-1
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of the 17th day of April, 2002.
NISSAN MOTOR ACCEPTANCE
CORPORATION
By:
-----------------------
Name:
Title:
A-2
SCHEDULE A
Schedule of Receivables
See schedule attached to the Sale and Servicing Agreement.
Schedule A
TABLE OF CONTENTS
PAGE
ARTICLE I
CERTAIN DEFINITIONS
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1 Purchase and Sale of Receivables....................................................................... 3
2.2 The Closing............................................................................................ 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Warranties of the Purchaser............................................................................ 4
3.2 Representations and Warranties of the Seller........................................................... 5
ARTICLE IV
CONDITIONS
4.1 Conditions to Obligation of the Purchaser.............................................................. 10
4.2 Conditions to Obligation of the Seller................................................................. 11
ARTICLE V
COVENANTS OF THE SELLER
5.1 Protection of Right, Title and Interest................................................................ 11
5.2 Other Liens or Interests............................................................................... 12
5.3 Costs and Expenses..................................................................................... 12
5.4 Indemnification........................................................................................ 12
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Obligations of Seller.................................................................................. 13
6.2 Repurchase Events...................................................................................... 13
6.3 Seller's Assignment of Purchased Receivables........................................................... 14
6.4 Trust.................................................................................................. 14
6.5 Amendment.............................................................................................. 14
-i-
TABLE OF CONTENTS
(CONTINUED)
6.6 Accountants' Letters................................................................................... 14
6.7 Waivers................................................................................................ 14
6.8 Notices................................................................................................ 14
6.9 Costs and Expenses..................................................................................... 15
6.10 Survival............................................................................................... 15
6.11 Headings and Cross-References.......................................................................... 15
6.12 Governing Law.......................................................................................... 15
6.13 Counterparts........................................................................................... 15
6.14 Sale................................................................................................... 15
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Contents/Authorities. Deleting this break will cause Table of
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Table of Contents/Authorities.
